The Supreme Court today extended its October 2022 order for suo moto action for FIR in hate speech cases to all States/UTs. The initial order passed in October 2022 in the Shaheen Abdullah hate speech case was only applicable to UP, Delhi and Uttarakhand. Apart from the original petition, the Court was also hearing a Contempt Petition against the State of Maharashtra for not registering and prosecuting multiple instances of hate speech over the past six-eight months. Asked to respond to specific allegations of inaction, ASG SV Raju for the state of Maharashtra explained that even in cases not highlighted by the petitioner, FIRs had been lodged and action was being initiated.
“Immediately, as and when any speech or any action takes place which attracts offences such as Section 153A, 153B, 295A and 506 of IPC etc. without any complaint being filed suo moto action be taken to register cases and proceed against the offenders in accordance with law. The matter will now be heard on May 12.
“We further make it clear that such action be taken irrespective of the religion of the maker of the speech, so that the secular character of Bharat as envisaged by the Preamble is preserved” the Supreme Court bench consisting of Justices KM Joseph and Nagarthana also stated in its order.
Directions by the Supreme Court in October 2022 when the respondent states were NCT of Delhi, Uttarakhand & Uttar Pradesh are significant:
1. Respondents 2 to 4 (Govts of Delhi, UP & Uttarakhand) will file a report as to what action has been taken in regards to acts as are the subject matter of this writ petition within their jurisdiction.
2. Respondents 2 to 4 shall ensure that immediately, as and when any speech or any action takes place which attracts offences such as Section 153A, 153B, 295A and 506 of IPC etc, without any complaint being filed suo motu action be taken to register cases and proceed against the offenders in accordance with law. We make it clear that any hesitation to act in accordance with these direction will be viewed as contempt of court and appropriate action shall be taken against the erring officers.
3. Respondents 2 to 4 will issue directions to the subordinates so that appropriate action can be taken at the earliest. We further make it clear that such action be taken irrespective of the religion of the maker of the speech, so that the secular character of Bharat as envisaged by the Preamble is preserved.
Now these directives will apply to all states in the union.
Close to six months or more after petitioner Shaheen Abdullah (a resident of Kerala) filed a case in the Supreme Court of India on the serial and repeated hate speeches being delivered in several states of the country, initially NCT of Delhi, Uttarakhand and Uttar Pradesh, the People’s Union for Civil Liberties (PUCL) has now intervened through an application related specifically to hate speeches in Maharashtra. The 179 page IA relies on multiple complaints filed by a collective of citizen’s organisations to various police station jurisdictions in Maharashtra, pre-emptively and after hate speeches were delivered to act.
So far, except for seven FIRS filed in recent weeks –four against T Raja Singh, MLA from Telangana elected on a ticket of the Bharatiya Janata Party (BJP), two against Kajal Hindusthani from Gujarat and one against Kalicharan Maharaj, the Maharashtra police has been tardy in even registration of offences. On March 29, at the last hearing of the case, a Contempt Petition filed by the lead petitioner, Shaheen Abdullah against the Maharashtra government argued that despite the SC’s clear directives to act, no action was forthcoming. Most of the FIRs mentioned above were filed after that date.
Original petitioner, Shaheen Abdullah had also filed a contempt petition at the last hearing on March 29 alleging that none of the directives issued by the SCI were being followed in Maharashtra. Annexing an article from The Indian Express that had tabulated over 50 rallies in the states and also details of complaints filed by several groups, prime among them Citizens for Justice and Peace, advocate Nizam Pasha representing Abdullah had stated that “hate speeches being made against Muslims in rallies in various states, and a number of them recently in Maharashtra.”
At today’s hearing, advocate Nizam Pasha also urged that a nodal officer be appointed in all states, to which Mehta responded saying all relevant directives have already been issued by the SCI in the Tehseen Poonawala judgement. Pasha had earlier clearly alleged authorities including police in Maharashtra and some states weren’t taking sufficient suo moto action despite getting advance information regarding possible hate speech and even after such public utterances were made by leaders of Hindu community. He said this was a clear violation of earlier SC order. Today, advocate Sanjay Parikh representing PUCL argued that hate crimes were being committed with impunity.
At an earlier in October 2022, Justices KM Joseph and Hrishikesh Roy had, on the same lead petition by Shaheen Abdulla directed all Respondent States (including the Governments of NCT of Delhi, Uttarakhand and Uttar Pradesh) to file a report before the Court regarding the actions taken on the hate speech crimes which happened within their jurisdiction. Significantly, the Court directed that these Governments should take suo moto action against any hate speech crime, without waiting for any complaint. The action should be taken regardless of the religion of the speaker. Any hesitation to act as per the directions would be viewed as contempt of court, the Court warned. A bench comprising Justices KM Joseph and Hrishikesh Roy was hearing a petition seeking urgent intervention to stop the “growing menace of targeting and terrorizing the Muslim Community in India”.
Admitting the petition and stating that the State and Police Authorities not registering criminal complaints against hate crimes was serious. The bench said that the complaint of the petitioner relates to the “prevailing climate of hate in the country” and total inaction of the authorities.
“The Constitution of India envisages Bharat as a secular nation and fraternity, assuring the dignity of the individual and the unity and integrity of the country are guiding principles enshrined in the Preamble. There cannot be fraternity unless members of the community drawn from different religions or castes are able to live in harmony”, the bench observed in the order.
Order of October 2022:
“We feel the court is charged with the duty to protect the fundamental rights and also protect and preserve the constitutional values in particular the rule of law and the secular democratic character of the nation”.
The union of India, represented by Solicitor General, Tushar Mehta, has been strongly urging the Supreme Court of India (SCI) not to act, arguing that these matters were fit cases for complainants to approach Magistrates for registration of FIRS under Section 153(3) of the Code of Criminal Procedure. The union’s arguments have also veered around the selective by making allegations against opposition ruled states like West Bengal and Bihar. Today, April 28, the SG was supported in similar arguments by the advocate general of Uttarakhand, original respondents in the case arguing that petitioners ought to have approached Magistrates within jurisdictions.
Mehta today, April 28, again urged that the SCI should not to “convert the court into a magisterial court” by entertaining applications, contempt petitions “based on newspaper reports” and not to “become a court of first instance” in this regard. Petitioner’s advocate.
On the last date, expressing concern at increasing instances of hate speech in the country the court had said this is the 21st century! Where have we reached in the name of religion?” “Silence certainly is not an answer. Not on our part, not on the court’s part” Worried about a “climate of hate” in a “religion-neutral” country, SC had on last date passed stringent orders to the police chiefs of Delhi, Uttarakhand, and Uttar Pradesh to file suo moto cases against hate speeches made by people from any religion, and warned of contempt action if the orders of the court are not complied with.
Advocate Vishnu Jain also filed an IA highlighting the issue of threats for “beheading” of a specific community. This intervention application has been allowed.